Trans student wins bathroom fight in court using the 14th Amendment and that’s a big deal

The 7th Circuit Court of Appeals has ruled in favor of a Wisconsin transgender student, Ash Whitaker, and his right to use the restroom aligned with their gender identity. This differs from Virginia’s transgender-teen case, GG v. Gloucester County, in that Whitaker and the Transgender Law Centers’ argument relied and won on the 14th Amendment, the equal protection clause of the US Constitution, a first for transgender recognition.

The ACLU/Grimm case against Gloucester County School Board relied on Obama-era recommendations from the Department of Education. Grimm won at the 4th Circuit Court on these grounds, but when Trump’s DoE rolled back those recommendations, it killed his case.

With Whitaker, however, a decision from the Supreme Court could decide the future of transgender student’s rights for some time.

More from TLC:

Today, the Seventh Circuit Court of Appeals issued a groundbreaking ruling in favor of Ash Whitaker, the transgender student plaintiff in Whitaker v. Kenosha Unified School District. In a unanimous decision authored by Judge Ann Claire Williams, the court upheld the preliminary injunction, issued by a federal district court in September 2016, that has allowed Ash, a senior at Tremper High School in the Kenosha Unified School District (KUSD) in Kenosha, Wisconsin, to use the boys’ restrooms at school throughout his senior year without fear of discipline or invasive surveillance by school officials.

…

The court agreed with the lower court’s conclusions that Ash was harmed significantly by the Kenosha Unified School District’s discriminatory practices that singled him out from other students and that KUSD failed to provide more than “sheer conjecture” that permitting Ash to use the boys’ restrooms would harm anyone.

The 7th Circuit Court said the school district “failed to provide any evidence of how [suspending the supportive policy] will harm it, or any of its students or parents. . . . , whereas the harms to Ash are well-documented and supported by the record.”

Before the injunction was put in place,

Before the injunction, Whitaker was “threatened” with disciplinary action, and “subjected him to constant surveillance” by administration once they realized the trans-identified teen was using the restroom aligned with their gender identity, no birth gender. To avoid punishment, Whitaker tried to avoid using the bathroom at school altogether.

TLC argued the resulting isolation and attention amounted to discrimination by his school and cause the student “serious depression, anxiety, and other physical and educational harms.”

The court also said the school was “arbitrary” in its policy and was “in violation of Ash’s Constitutional rights.”

“I am thrilled that the Seventh Circuit recognized my right to be treated as the boy that I am at school,” said Whitaker in a statement sent out by TLC. “After facing daily humiliation at school last year from being threatened with discipline and being constantly monitored by school staff just to use the bathroom, the district court’s injunction in September allowed me to be a typical senior in high school and to focus on my classes, after-school activities, applying to college, and building lasting friendships.

The 7th Circuit Court encompasses Wisconsin, Illinois, and Ohio meaning this ruling doesn’t extend outside of their jurisdiction – the impacts of the Whitaker case wont be seen further until the Supreme Court rules on the case. SCOTUS’ current makeup matches politically with the politics when same-sex marriage won using the 14th Amendment. The 7th Circuit’s make up is similarly dominated by Republican appointees, 8-4.

Same-sex marriage’s momentous win came at the hands of Justice Kennedy siding with the plaintiffs, an unexpected move for the traditionally conservative Reagan appointee. Many of the 7th Circuits’ members are Reagan appointees – this could fair well for the issue if the school district appeals the courts decision.

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